CIRCLIST - Circumcision Law

As a matter of generality, male circumcision is legal throughout Australia. However, there are moves afoot in Tasmania [2009] to restrict the circumcision of male children on parental initiative. This local attempt to restrict circumcision (which cites the usual arguments put forward by intactivists) highlights the fact that, when considering any legal issue in Australia, it is necessary to bear in mind that both state and national laws can apply to the matter.

At a fundamental level, Australian law is based on the principles of English law. However, unlike England where medical consent transfers from parent to child at age 16, the age boundary in Australia is 18. Fortunately for uncircumcised teenagers, the rule of Gillick Competence has been imported into Australian law from the UK where it originated. This case law entitles individuals under the age of formal consent to seek confidential medical treatment as soon as they reach an age to comprehend the issues involved, without having to wait until formal majority is attained. For more detail of this in the Australian context, see the FindLaw Australia website.

The Republic of Ireland became wholly independent in December 1921 and is the subject of a separate entry below. The remaining parts of the British Isles are not homogeneous. Those wishing to explore further the complex constitutional structure linking the various parts of the British Isles should look elsewhere; it is beyond the scope of this website. Suffice it to say here that, apart from Éire, there are seven legislatures, seven executive administrations and six separate legal systems.

All administrative and some legislative issues relating to health have been devolved to the Scottish Parliament and to the National Assemblies of Wales and Northern Ireland. Additionally, the Isle of Man, Jersey and Guernsey each have their own separate jurisdictions. As at October 2009 there are no known divergences between these separate legal systems in respect of male circumcision but it should be noted that the potential for variation in the future does exist.

It had long been the case that, in the UK, the matter of consent to medical treatment passed from parent to child at the age of 16. This was so even pre-1969 when the voting age and the age of marriage without parental consent were both 21. Until 1986 the perceived wisdom was that a parent or legal guardian decided whether or not a boy under 16 should be circumcised whereas a young adult 16 years of age or older, if uncircumcised, took for himself any decision to become circumcised.

In 1986 this was overturned by case law that involved a failed attempt by one Victoria Gillick, a mother of ten children, to prevent the Department of Health and Social Security from giving the contraceptive pill to under-age girls without parental consent. The judgement in Gillick v West Norfolk and Wisbech Area Health Authority changed not only the consent rules relating to contraception in respect of under-age sex but also the whole matter of a minor’s consent to medical treatment. The post-1986 situation is best summed up by the following quote from the judgement of the late Lord Scarman* in the Gillick case:

[P]arental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child … as a matter of law, the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.

Legal reference: Gillick v West Norfolk and Wisbech Area Health Authority [1986], AC 112, pp.184, 188-189.

* Leslie George Scarman, Baron Scarman of Quatt, lawyer, born July 29 1911, died December 8 2004. Called to the Bar in 1936, he became a QC in 1957, a High Court judge in 1961, a Lord Justice of Appeal eight years later, and a Lord of Appeal in Ordinary in 1977.

Authoritarian parents, minded to micro-manage their offspring until the day they leave the nest, would do well to think long and hard about the very wide implications of Lord Scarman’s words. The Gillick Test of Competence has now been extended through other case law to include non-medical matters; a competent child’s decision overrides parental wishes even if the age of majority has not been reached. Like it or not, this is the legal situation and has been for the best part of a generation. The concept of ‛Gillick Competence’ has also been imported into other legal systems based upon the fundamental concepts of English Law.

There remains some doubt as to whether the right to obtain treatment is paralleled by a right to refuse it. In the above quote, Lord Scarman said “...whether or not their minor child...”. Some sources confidently assert that no such parallel right of refusal derives from Gillick (for example Lawteacher), but this appears to ignore the possibile existence of a general right of refusal deriving from the case Sørensen & Rasmussen v Denmark, 2006, in the European Court of Human Rights. In the ECHR case the subject area was Article 11 in relation to trade union membership; what has yet to be tested is whether the principle behind that judgement has wider application. If a right to choose something exists, must that right always be interpreted as carrying with it the right to refuse the same choice? It is a moot point. If ever a case concerning a child’s attempted refusal of medical intervention were to reach the European Court, the judgement would have effect across all 47 member states of the Council of Europe.

In the UK, professional guidelines relating to non-therapeutic circumcision require consent by all those having Parental Responsibility in law, not just the consent of one of them. The BMA also recommends that a competent child’s expressed wish not to be circumcised should, on the grounds of medical ethics, veto a parental wish that the boy be circumcised in the absence of medical need. Whether one agrees or disagrees with the British Medical Association on these issues isn’t the point. For practical purposes doctors are bound by the BMA guidelines because they coincide with the policy of the General Medical Council, the statutory diciplinary body. The GMC having a UK-wide remit, this restriction also applies in Northern Ireland. By this means the medical profession have in effect created their own law, by-passing the normal democratic and common law processes. The prevailing view within the profession seems to be that a boy aged 8 is competent to refuse non-therapeutic circumcision.

You are invited to download a copy of the British Medical Association’s publication The law and ethics of male circumcision (The download is a .pdf file, 120kB).

There is no specific legislation in the UK relating to male circumcision; such criminal cases as arise tend to fall into the category of ‛Assault causing actual bodily harm’. There is little doubt concerning the validity of consent to a ritual, non-medical circumcision freely given by an adult. See Regina v Brown (Anthony) [1994] 1 AC 212 at 231, [1993] 2 All ER 75 at 78-79. This criminal case concerned a number of sado-masochistic men who were convicted of assaults upon each other, notwithstanding that each had consented to the assaults in question - but these assaults were not circumcisions. In judgement, Lord Templeman said:

In some circumstances violence is not punishable under the criminal law. When no actual bodily harm is caused, the consent of the person affected precludes him from complaining. There can be no conviction for the summary offence of common assault if the victim has consented to the assault. Even when violence is intentionally inflicted and results in actual bodily harm, wounding or serious bodily harm the accused is entitled to be acquitted if the injury was a foreseeable incident of a lawful activity in which the person injured was participating. Surgery involves intentional violence resulting in actual or sometimes serious bodily harm but surgery is a lawful activity. Other activities carried on with consent by or on behalf of the injured person have been accepted as lawful notwithstanding that they involve actual bodily harm or may cause serious bodily harm. Ritual circumcision, tattooing, ear-piercing and violent sports including boxing are lawful activities.

This is clearly ‛obiter’, a comment made by way of an aside not based upon the facts of the case. As such, it does not create a binding precedent in respect of circumcision - only guidance.

Not every case in the lower courts (or even in the High Court) generates a formal law report, so citation of precedents becomes problematic. Wikipedia asserts that “In 2005 a Muslim man had his son circumcised against the wishes of the child’s mother who was the custodial parent. He is reported to have been found not guilty of assault occasioning actual bodily harm by a majority verdict of the jury”, but no case reference is attached.

There is a recorded instance where the Criminal Injuries Compensation Board paid out compensation in respect of a circumcision done without the informed consent of both parents. [Re: Theodore Yorke. Source: The Independent newspaper, 22 May 1994.] Curiously this was done in the absence of any criminal conviction, giving rise to the possibility that the Board’s action may have been Ultra Vires.

Civil law concerning circumcision tends to be confined to Children Act cases. A good summary of the legal position regarding child circumcision is to be found here: Re "J" (child’s religious upbringing and circumcision) [1999] 2 FCR 34. The key points to emerge from that case were:

There is no statutory prohibition against male circumcision in the absence of agreement of all those with parental responsibility.
Male circumcision is lawful under English common law.
It is generally accepted that the removal of the foreskin of the penis has little, if any, effect on a man’s ability to enjoy sexual intercourse and this act is not, therefore, regarded in law as a mutilation.
Where two parents, jointly exercising parental responsibility for a male child, cause him to be circumcised other than as a matter of medical necessity, that exercise of parental responsibility is lawful.
Where there is a disagreement between those who have parental responsibility for the child as to whether or not he should be circumcised, the issue is one within the Court’s jurisdiction under s.8 of the Children Act 1989; circumcision is not to be carried out without the leave of the Court. This includes a situation where a local authority is exercising parental responsibility under a Care Order. The Court must decide the question by the application of s.1 of the 1989 Act to the facts of the individual case.

On 20th November 2003 a Nigerian refugee was sent for trial in Waterford District Court following a kitchen-table circumcision with a razor blade which led to the death of a 29-day-old African boy. Osagie Igbinedion (age 30) of Ormonde House Hostel, Kilkenny, was charged with intentionally or recklessly engaging in the performance of a circumcision at 7 Summerhill Mews, Waterford, on August 17, 2003. The infant, called Callis Osaghae, later died at Waterford Regional Hospital. At trial the judge directed the jury not to bring what he called their “white western values” to bear when they were deciding this case and after deliberating for an hour and a half they found the defendant not guilty. [Source: Radio Telefís Éireann news reports, Tuesday, 04 and Friday, 07 October 2005.]

Following the death and without waiting for the trial verdict, in January 2004 the Irish Government’s Department of Health appointed a panel of experts to draw up recommendations on how the cater for the demand for circumcisions. The committee was chaired by paediatrician Professor Denis Gill. The 23-page report has received far less attention outside the Republic of Ireland than it deserves. CIRCLIST is pleased to make a copy of Professor Gill’s report available as an 84kB .pdf download. The core recommendations are that circumcisions should be confined to hospital settings unless being conducted according to established Jewish rituals - and even then, the skills and techniques of Mohelim should be subject to additional scrutiny by the government’s Health Service Executive.

Inferred but not stated in the report is that general anaesthetics are henceforth to be used for circumcisions in Irish state hospitals. (This would account for the minimum age of 6 months.) Further information is required.

The South Eastern Health Board, within whose area Callis Osaghae died, did not even wait for Professor Gill’s report. Their management team recommended that the procedure be made available forthwith at Waterford Regional hospital, on cultural and religious grounds. It is unclear whether Professor Gill’s report ever resulted in a specific legal prohibition on circumcisions in other settings or whether that matter continues to be dealt with under the more general heading of the criminal law dealing with child protection.

The Children’s Act 2005 makes the circumcision of male children under 16 unlawful except for religious or medical reasons. It also creates a statutory right for a competent child to refuse circumcision. The relevant parts of the legislation are Sections 12(8) to 12(10); the whole Act is set out in the Government Gazette dated 19 June 2006.

In a judgement delivered by the Bhisho Equality Court (High Court) on Tuesday 13 October 2009 the requirement for consent was extended to adults (the case at point having involved the forced circumcision of an adult according to traditional Xhosa rites).

It remains unclear whether ‛medical reasons’ include HIV prophylaxis. Large numbers of South Africans are choosing to be circumcised for this reason, but as yet there is no known case law relating to a parent or guardian citing anti-AIDS precautions as a reason for circumcising their son during infancy or childhood.

Separately, at provincial level, the legislature of the Eastern Cape Province passed a law (the Application of Health Standards in Traditional Circumcision Act 2001) to regulate traditional circumcision. Among other provisions, the minimum age for traditional circumcision in the Eastern Cape is 18 years.

Sweden is often cited as a country with anti-circumcision legislation applicable to male children. The following quote comes from an article by Yngve Hofvander published in The Lancet in 2002:

In Sweden, male circumcision was brought to public attention in 1966, after a foreign doctor had circumcised six Bosnian boys without anaesthetic and under unhygienic conditions. Four of these boys were later admitted to hospital. The doctor was found guilty of assault, but was later acquitted, mainly on the grounds that circumcision was a socially adequate mild assault. This case caused much public and professional indignation and became the starting point for the government to begin preparing for a law to regulate circumcision in Sweden.

After a lengthy period of debate and extensive consultation with religious, medical, medicoethical, and legal authorities, a law was passed with the following elements.

During the first 2 months of life, a lay person - a Jewish Mohel - authorised by the Board of Health and Welfare, may do the circumcision. After this age a doctor must do the circumcision. All children, even at younger than 2 months, have to have anaesthesia which must be administered by a doctor or nurse. The Board recommends anaesthetic skin cream before age 2 months, followed by infiltration anaesthesia, and, for older children, general anaesthesia or penis blockade.

Careful information has to be given by the person who will do the operation about all its features, including the method, risks, possible complications, pain, and the anaesthesia to be given, what after care is needed, and that the foreskin cannot be restored. No child must be circumcised against his will if he is able to express it. Both parents have to give their informed consent, if required, in writing.

The law described was enacted in 2001, before the prophylactic benefits of circumcision with respect to sexually transmitted diseases had been fully researched and documented. It should be noted that the legislation does not prohibit circumcision but merely regulates it.

The case Boldt v Boldt (Supreme Court of the US State of Oregon) makes an interesting comparison with the English cases "Re.J" and "Gillick" mentioned above. In Oregon the custodial parent generally has the right to take medical decisions about their child without regard to objection from the divorced non-custodial parent, whereas in England and Wales any non-emergency medical proposal needs either the approval of all those with “Parental Responsibility” or an Order of the Court.

At first sight the Oregon judgement has some echoes of ‘Gillick Competence’ insofar as the Supreme Court remanded the case to the trial court to take testimony regarding the 12-year old boy’s preference. However, the Oregon court’s reason for seeking the boy’s opinion was not in furtherance of any absolute right of the child to self-determination. Rather, it was for the purposes of discovering any adverse effect that a forced circumcision might have on the boy’s relationship with his father - an effect that might disturb the custody arrangements.

To study this case further, read the judgement of De Muniz, Chief Justice of the State of Oregon, in this Oregon Law Report and also the Oregon Divorce Blog.

The following resources were used in the preparation of this web page:

Research by members of the CIRCLIST discussion group.

The website "FindLaw Australia", accessed 26.Oct.2009.
FindLaw Australia is a division of Thomson Reuters (Professional) Australia Limited.

Publications Department of the British Medical Association. Also court reports and newspaper articles as cited in the text.

Websites of the Irish government’s Health Service Executive, the state-run public service broadcaster Radio Telefís Éireann and the Irish Independent newspaper.

The Legalbrief website (Accessed 26.Oct.2009).

The Lancet, Volume 359, Issue 9306, Page 630. (16 February 2002)

Document archive of the District Court of the County of Hennepin, Minnesota and the website of the Hennepin County Bar Association.

Document archive of the Supreme Court of the State of Oregon.


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